I. BACKGROUND  

Plaintiff Stephanie De La Rosa (“Plaintiff”) filed this action against defendants Hamza Krofess and Does 1 to 50 for damages arising from a motor vehicle accident. Plaintiff filed amendments to complaint naming Raiser LLC as Doe 1, Raiser-CA LLC as Doe 2, and Raiser – DC LLC as Doe 3. 

Raiser LLC and Raiser-CA LLC (collectively, “Raiser”) now move for terminating sanctions against Plaintiff for failing to serve verified discovery responses in compliance with the Court’s February 21, 2024 Order compelling responses to Raiser’s Request for Admissions (“RFAs”), set one, and Requests for Production of Documents (“RPDs”), set one. Raiser asserts Plaintiff has yet to serve verified responses. Further, Raiser contends that on January 8, 2024, the Court ordered discovery reopened for the limited purpose of: Defendant propounding additional written discovery on Plaintiff, Plaintiff providing responses to supplemental interrogatories, and to take the second deposition of Plaintiff regarding her subsequent motor vehicle accident not previously disclosed. However, Rasier argues Plaintiff’s counsel has refused to make Plaintiff available for deposition, and Plaintiff has failed to pay any monetary sanctions previously ordered to date.  

Any opposition was due on or before March 28, 2024. Plaintiff filed an opposition on April 8, 2024. The Court will not consider the untimely opposition. 

II. MOTION FOR TERMINATING SANCTIONS 

Code of Civil Procedure § 2023.030 gives the court the discretion to impose sanctions against anyone engaging in a misuse of the discovery process.  A court may impose terminating sanctions by striking pleadings of the party engaged in misuse of discovery or entering default judgment.  (Code Civ. Proc., § 2023.030(d).)  “[T]the trial court has broad discretion in selecting the appropriate sanction, and we must uphold the trial court's determination absent an abuse of discretion.”  (Dept. of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191, overturned on other grounds in Presbyterian Camp & Conference Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493, 516 n. 17.)   

A violation of a discovery order is sufficient for the imposition of terminating sanctions.  (Collison & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620.)  Terminating sanctions are appropriate when a party persists in disobeying the court's orders.  (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 795-796.)   

A terminating sanction is a "drastic measure which should be employed with caution."  (Deyo, 84 Cal.App.3d at 793.)  "A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction."  (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.)  While the court has discretion to impose terminating sanctions, these sanctions "should be appropriate to the dereliction and should not exceed that which is required to protect the interests of the party entitled to but denied discovery."  (Deyo, supra, 84 Cal.App.3d at 793.)  "[A] court is empowered to apply the ultimate sanction against a litigant who persists in the outright refusal to comply with his discovery obligations."  (Ibid.)  Discovery sanctions are not to be imposed for punishment, but instead are used to encourage fair disclosure of discovery to prevent unfairness resulting for the lack of information.  (See Midwife v. Bernal (1988) 203 Cal.App.3d 57, 64 [superseded on other grounds as stated in Kohan v. Cohan (1991) 229 Cal.App.3d 967, 971].) 

On February 21, 2024, the Court granted Raiser, LLC’s motion to compel RPDs, set two, and supplemental interrogatories and supplemental RPDs. (Min. Order, Feb. 21, 2024.) Contrary to Rasier’s assertion, the Court did not compel Plaintiff to respond to RFAs, set two. Rather, this request was denied without prejudice due to procedural deficiencies in the Notice of the motion. (Ibid.) The Court also awarded Rasier LLC $480 in monetary sanctions. (Ibid.)  

According to Rasier, Plaintiff served responses to the supplemental interrogatories and RPDs, but has yet to do so for the RPDs, set two. There is no evidence that Plaintiff has cured this defect to date. Furthermore, trial is currently set for July 31, 2024, and it is in the interests of all parties for any and all remaining outstanding discovery to be completed, including Plaintiff’s second deposition. The continuous delays by Plaintiff in participation, and failure to proceed in a diligent manner, evinces a measure of willfulness despite knowing her discovery obligations. Plaintiff has yet to pay any of the monetary sanctions owed, and therefore the Court is inclined to believe that lesser sanctions will not curb the abuse. However, because Plaintiff appears to still be present in the action, the Court will defer imposing terminating sanctions. Instead, the hearing on this motion will be continued by approximately 30 days. Within this timeframe, Plaintiff must complete all outstanding discovery obligations as previously ordered, including the timely scheduling and attendance of her deposition. Plaintiff is on notice that failure to comply may result in sanctions and/or the dismissal of Plaintiff’s action.  

Accordingly, the Court continues the Hearing on Motion for Terminating Sanctions to ___________________at 1:30 p.m. in Department 31 of the Spring Street Courthouse. Each party is ordered to file a one-page declaration, no later than 5 court days prior to the continued hearing date, detailing the status of discovery. No additional briefing will be permitted. Moving party is to take the motion off-calendar should the issues be rendered moot.  

Moving party is ordered to give notice.  

PLEASE TAKE NOTICE: 

Dated this 10th day of April 2024